External Relations and International Agreements: Celex/Eur-Lex Sectors 2 and 4 and Beyond

AuthorPeter Kustor
ProfessionMag. jur. Bundeskanzleramt Head of department E-Government - Legal, organisational and international issues, Bundeskanzleramt, Österreich (Federal Chancellery, Austria), Member of the working party on legal data processing of the Council
Pages90-95

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This article tries to give a brief overview of the documentation of legal instruments in the context of external relations and international agreements within the EU legal databases. While emphasising the respective sectors of CELEX/ EUR-Lex, the Council database is mentioned as well. A merger of, or closer cooperation between, these two sources could lead to interesting perspectives.

Sector 2 of CELEX/EUR-Lex

Sector 2 of CELEX/EUR-Lex contains legal instruments produced by the European Communities and the European Union in the exercise of their international treaty-making powers.

On one hand, this sector includes international agreements concluded by the European Communities or the European Union (under Article 24 of the Treaty on European Union) with non-member countries or with international organisations in their specific areas of responsibility.

Secondly, so-called mixed agreements are covered in sector 2. Mixed agreements are agreements under public international law concluded jointly by the European Communities (or the European Union) together with the Member States on one hand and third countries or international organisations on the other hand. The reason for this lies with the distribution of competencies between the EU/EC and the Member States as laid down in the founding treaties. Although parts of the contents of these agreements fall under the competence of the EU/EC, other parts cannot be based on Community/Union competencies and, therefore, require direct involvement of the Member States.

Examples of such mixed agreements include association agreements or partnership and cooperation agreements: see e.g. Agreement on the European Economic Area or the ACP Convention and the Europe Agreements.

Thirdly, decisions of bodies created by these international agreements are documented in sector 2 of CELEX/EUR-Lex. Most of the agreements mentioned above set out the legal basis for bodies/organs entitled to take legally binding decisions (e.g. decisions by mixed committees or joint committees).

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CELEX/EUR-Lex document numbers of international agreements and other acts contained in sector 2 are structured as follows.

First digit: 2 (CELEX/EUR-Lex sector 2)

The following 4 digits: year of the agreement. There are two different approaches: for some documents, the year refers to the year of signature of the agreement (and not, for example, to the year of the entry into force); for the larger part of the documents the year refers to the year of publication in the Official Journal. Unfortunately, it is not transparent for the user which approach has been chosen in a specific case.

Following digit: the type of document: A (for agreements), D (for decisions or other instruments by bodies established by the specific international agreement), P (acts of parliamentary bodies created by the specific international agreement), X (for other acts such as memoranda of understanding or information concerning the entry into force of the specific agreement).

Following this, a four-digit number is formed using the date of signature or publication.

Lastly, the document number may be followed by a series number in parentheses indicating that possibly several agreements were signed or published on the same day.

EXAMPLES:

21964A1229(01): Agreement establishing an association between the European Economic Community and Turkey - Protocol 1: Provisional Protocol - Protocol 2: Financial Protocol - Final Act - Declarations, published in the OJ p 217, 29.12.1964

21980A0227(05): Agreement on fisheries between the European Economic Community and the Kingdom of Norway, published in the OJ L 226, 29.8.1980 - date of signature (in this case being the basis for the document number): 27.2.1980

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22004D1214(02): Decision No 1/2004 of the EU/Switzerland Mixed Committee established by the agreement concluded between the European Union, the European Community and the Swiss Confederation concerning the latter's association in the implementation, application and development of the Schengen acquis of 26 October 2004 adopting its rules of procedure, published in the OJ C 308, 14.12.2004

The recently improved EUR-Lex page offers access to these documents also by classification headings (directory of international agreements - identical structure to the Directory of legislation in force, but restricted to international agreements contained therein) and subject matter.

Sector 4 of CELEX/EUR-Lex

A separate, but thematically related sector of CELEX/EUR-Lex is sector 4, supplementary legislation. The documents contained therein are not adopted by Community or Union institutions within the EC/EU competencies laid down in the primary law but form agreements or other instruments under public international law concluded between Member States. These documents relate to areas closely associated with Union activities. As these instruments are as such adopted under international law, they generally fall outside the scope of specific Community/Union law.

This sector comprises decisions of the representatives of the Member States meeting within the Council and international conventions concluded between Member States, e.g. the Schengen agreement before its incorporation into the legal framework of the EC/EU treaty, agreements implementing cooperation on justice and home affairs, etc.

The CELEX/EUR-Lex number of these instruments is formed in a similar way to the number of documents in sector 2. Also, the type of document is similar: A (agreements between Member States), D (decisions of the representatives of the governments of Member States), X (other acts).

The treatment of such instruments nationally seems to vary quite strongly between the Member States. Particularly the so-called 'Decisions of the representatives of the governments of Member States' sometimes cause confusion: as they do not form part of Community/Union law, the legal base for agreeing to such a 'decision' has to be identified in the legal/constitutional framework ofPage 93 each Member State individually. As these decisions are usually agreed upon in the margins of Council meetings, various Member States sometimes seem to make no real distinction between their agreement to Council decisions on the one hand and to such decisions under public international law on the other.

In Austria, these decisions are usually analysed during the drafting phase in order to ascertain which level of treatment they would have to undergo by national institutions in case of agreement. In some cases the contents of these decisions are qualified as modifying or complementing existing national laws which leads to the consequence that these decisions can only be agreed upon with the approval of the Austrian parliament (National Council). Insofar as such decisions settle matters within the autonomous sphere of competence of the provinces (Federal Länder), they additionally require the approval of the Federal Council. Thus the national ratification procedure follows the usual procedures required for 'normal' treaties under public international law. Insofar as the decision in question does not conflict with (amend) existing laws, it lies with the Federal Government or with the competent Federal Minister to give consent to the decision.

As an example of parliamentary approval of such a decision one could name the decision of the representatives of the governments of the Member States, meeting within the Council of 27 February 2002, on the financial consequences of the expiry of the ECSC Treaty and on the research fund for coal and steel, OJ L 79, 22.3.2002 (CELEX/EUR-Lex number 42002D0234).

Agreements database of the Council

The Council of the EU hosts an important database not containing the full text of agreements, but covering meta-information on them, including those relevant in the process of being approved. The information is updated daily and includes dates of signature, approval and entry into force. Reference is also made to any relevant reservations or declarations made by a party to an agreement. The full texts of these declarations and reservations are also included in this database. When the text of an agreement has been published in the Official Journal a reference (link) is included.

This database thus contains valuable information, particularly concerning 'mixed' agreements. As these agreements usually need parliamentary approval by all Member States as well as by the EU bodies and the respective bodies of the other party to the agreement, the ratification process may take quite a long time. No real publicly available source for the ratification details concerning thePage 94 other parties exists. For instance, in Austria, the conclusion of the parliamentary ratification process does not lead to immediate publication of the international agreement as publication takes place only at the time the agreement has entered into force for Austria under public international law (usually after positive conclusion of all ratifications). Until the date of publication it is rather difficult to find out the ratification status of a specific agreement (are there only one or two ratifications still missing - and thus entry into force can be expected more or less soon - or are there 20 other ratifications still pending?).

The database is available only in English and French at the moment and can be searched for parties to the agreement, terms in the title, and date of signature. As mentioned before, the data is included into the database usually also before the full text of the agreement is published in the Official Journal (and thus before inclusion into CELEX/EUR-Lex, too).

Possible improvements?

Data contained in CELEX/EUR-Lex sectors 2 and 4 is the most comprehensive. Instruments included in these sectors are available in full text. The time of inclusion of this data into the system mainly depends on publication in the Official Journal. The agreements database of the Council only contains meta-data, which also includes data which is not covered by CELEX/EUR-Lex yet. In particular, the ratification details by Member States are extremely helpful.

To demonstrate the supplementary character of the two - currenly separate - sources the following example shows the data contained in CELEX/EUR-Lex on the so-called EU-SOFA [CELEX/EUR-Lex number 42003A1231(01)] and the details for the same instrument contained in the agreements database:

[ FIGURE ARE NOT INCLUDED ]

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To achieve a 'one-stop shop', a kind of legal database with CELEX/EUR-Lex sectors 2 and 4 could be enriched by this data. Of course this would require quite some efforts not only in adding further categories and fields but also with respect to the language question. As the agreements database is currently only available in English and French whereas CELEX/EUR-Lex is available in all other official languages as well, a possible merger would take some time and require some political and financial commitment. Moreover, as the agreements database of the Council contains data even before publication of the agreement in the Official Journal a merger would require a change in policy for CELEX/EUR-Lex concerning the inclusion of such data therein as well.

At least a more comfortable search mechanism for the agreements database and better links between CELEX/EUR-Lex and the agreements database of the Council would be an improvement as a first step. It would already be helpful to include a link from CELEX/EUR-Lex sectors 2 and 4 instruments to the respective details contained in the agreements database wherever feasible. This could be solved in a similar way to the current solution for linking CELEX/EUR-Lex documents with relevant details contained in PreLex or the Legislative Observatory of the European Parliament.

Perhaps the celebration of the anniversary of CELEX/EUR-Lex in 2006 provides a good opportunity to develop some ideas for further improving CELEX/EUR-Lex with respect to sectors 2 and 4 and building an even more powerful and comprehensive European legal information system.

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